THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEITH CLARK, Defendant-Appellant.
Appeal No. 3-14-0036
APPELLATE COURT OF ILLINOIS THIRD DISTRICT
October 5, 2015
2015 IL App (3d) 140036
A.D., 2015. Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois, Circuit No. 11-CF-122. Honorable Stephen A. Kouri, Judge, Presiding.
Justices O‘Brien and Schmidt concurred in the judgment and opinion.
OPINION
¶ 1 Defendant, Keith Clark, argues that the evidence at his trial was insufficient to prove beyond a reasonable doubt that he was armed with a firearm during the commission of a robbery. Additionally, defendant argues that the trial court erred in failing to give a jury instruction defining “firearm” and that defense counsel‘s failure to tender such an instruction constituted ineffective assistance of counsel. Defendant also argues that certain lines and fees were improperly assessed against him.
FACTS
¶ 3 ¶ 4 Defendant was charged by indictment with armed robbery (
¶ 5 A jury trial was held. Bilfaqi testified that he was working as a delivery driver for Bacci‘s, a pizzeria, on the evening of the incident. Between 2 and 3 a.m., Bilfaqi was driving his car to deliver two pizzas to a customer at an apartment complex. Pavel Chernyshev, a coworker, was riding in Bilfaqi‘s passenger seat. Bilfaqi called the customer three to five times because he was having trouble finding the address the customer had given him. Bilfaqi believed the customer sounded male. Bilfaqi drove to one location, and the customer told him to drive to a different one. Bilfaqi reached the second location and the customer was not there. Eventually, the customer said that he saw Bilfaqi‘s car and told him to stop.
¶ 6 Bilfaqi got out of the car, still talking to the customer on the phone. Bilfaqi was holding the pizza bag. The customer told him to come up to the door. Bilfaqi went up to the apartment door and waited for awhile. There was another apartment door to his right, but to his left was just the corner of the building. The area was fairly dark, but there were some lights. While still
¶ 7 The man pointed the rifle directly at Bilfaqi; the rifle had a red laser pointer for tracking, which was lit up. The man told Bilfaqi to drop the pizza bag and money. Bilfaqi dropped the bag and the money he was carrying in his pockets—approximately $20 to $30—and ran to his car. The man said, “Only $20?” and made some derogatory comments. The entire incident lasted approximately five seconds.
¶ 8 Chernyshev testified that he was riding in the passenger seat of Bilfaqi‘s car on the evening in question. Chernyshev was allowed to go home early because it had been snowing heavily earlier that night, and Bilfaqi offered to give him a ride home after he completed his last delivery. Once Chernyshev and Bilfaqi reached the apartment complex where they were to deliver the pizza, they had difficulty locating the correct apartment. The customer directed Chernyshev and Bilfaqi to three or four different apartments via cell phone.
¶ 9 At the final apartment, Bilfaqi walked up to the door. Chernyshev remained in the car approximately 50 yards away from Bilfaqi. It was not snowing at that time. Chernyshev could see someone standing at the side of the building, peeking around the corner. Chernyshev could “plainly see” that the man around the corner had a gun. Chernyshev said the gun was a “rifle” and described it as “something you don‘t carry on the street.” Chernyshev did not yell out to
Bilfaqi because he was concerned it would be unsafe for Bilfaqi if he did. The apartment complex had recessed lighting. The man with the rifle walked up to Bilfaqi and pointed the rifle at him. The man was African American and was wearing a hoodie or dark sweater with a hood, a hat, and dark pants. Chernyshev stated that the hat could have been the man‘s hair. The man said something to Bilfaqi like “that‘s all you got?” and then said some derogatory things. Bilfaqi dropped the pizza bag and ran toward the car. Chernyshev saw the man with the rifle go back around the building the same way he came.
¶ 11 During closing arguments, the prosecutor argued that the rifle described by Bilfaqi and Chernyshev was “an operating firearm” as opposed to “a toy or something.” The prosecutor admitted that no gun was recovered that could be definitively linked to the crime, but argued that the jury could infer through circumstantial evidence that the rifle was a real gun. The prosecutor argued that if defendant did not have a real firearm and was going to use a toy, he would have picked something small and easy to conceal. The prosecutor contended that defendant used the rifle because it was the only firearm he had available. In other words, the rifle was a choice of last resort because it was large and could not be concealed within defendant‘s clothing. The prosecutor also argued that it would be unlikely for someone to affix a laser to a toy rifle. Additionally, the prosecutor pointed out that neither Bilfaqi nor Chernyshev hesitated in identifying the object as a rifle and neither expressed belief that the rifle could have been plastic or a fake.
¶ 13 During rebuttal, the prosecutor repeated his argument as to why the rifle was a real gun. The prosecutor then stated: “So don‘t get into this whole is it a real gun, is it not a real gun, was he looking at the face, was he looking at the gun. It was a rifle. That‘s a firearm. This was an armed robbery.”
¶ 14 After closing arguments, jury instructions were given. An instruction defining “firearm” was not proffered by the defense or given to the jury. The jury found defendant guilty of armed robbery. Defendant was sentenced to 24 years’ imprisonment.
ANALYSIS
I. Sufficiency of the Evidence
¶ 15 ¶ 16 ¶ 17 On appeal, defendant initially argues that the State failed to prove beyond a reasonable doubt that defendant carried or possessed a firearm while committing the robbery. Specifically, defendant argues that given the dim lighting at the scene of the robbery, the distance of Bilfaqi and Chernyshev from defendant, the brief nature of the encounter, and the fact that no gun was introduced into evidence, the testimony of Bilfaqi and Chernyshev was insufficient evidence to support the jury‘s finding that defendant carried a firearm within the statutory definition. See
¶ 19 To convict defendant of armed robbery, the State was required to prove that defendant knowingly took property from the person or presence of Bilfaqi by threatening the imminent use of force while armed with a firearm.
” ‘Firearm’ means any device, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas; excluding, however:
(1) any pneumatic gun, spring gun, paint ball gun or BB gun which either expels a single globular projectile not exceeding .18 inch in
diameter and which has a maximum muzzle velocity of less than 700 feet per second or breakable paint balls containing washable marking colors;
(2) any device used exclusively for signalling or safety and required or recommended by the United States Coast Guard or the Interstate Commerce Commission;
(3) any device used exclusively for the firing of stud cartridges, explosive rivets or similar industrial ammunition; and
(4) an antique firearm (other than a machine-gun) which, although designed as a weapon, the Department of State Police finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector‘s item and is not likely to be used as a weapon.”
430 ILCS 65/1.1 (West 2010).
See also
¶ 20 “The State does not have to prove the gun is a firearm [within the meaning of the statutory definition] by direct or physical evidence; unequivocal testimony of a witness that the defendant held a gun is circumstantial evidence sufficient to establish that a defendant was armed during a robbery.” People v. Wright, 2015 IL App (1st) 123496, ¶ 74. In Wright, the court held that the evidence was sufficient to prove that the defendant was armed with a gun that met the statutory definition of “firearm” during a robbery where the only evidence of the gun was the testimony of three witnesses that they saw the gun, two of which testified they had seen guns before, and one of which testified that he was ” ‘100% sure’ ” that the gun was an actual firearm. Id. ¶ 76.
¶ 22 In the instant case, both Bilfaqi and Chernyshev testified that they observed that the person who robbed Bilfaqi was carrying a “rifle.” Bilfaqi described the rifle as black with a red laser pointer. Bilfaqi testified that the man with the rifle was approximately 20 to 30 feet away from him and that the area was fairly dark, but there was some light. Bilfaqi was able to see well enough to observe the man‘s face, the clothing he was wearing, his race, and his facial hair. Chernyshev testified that the area had recessed lighting and that he was approximately 50 yards away from Bilfaqi and the robber during the incident. Chernyshev testified that he could “plainly see” the rifle and described the rifle as “something you don‘t carry on the street.”
¶ 24 We reject defendant‘s argument that the eyewitness testimony of Bilfaqi and Chernyshev that defendant was carrying a “rifle” was insufficient evidence from which the finding could be made that the object was a “firearm” rather than an air gun or BB gun. In support of his contention, defendant cites federal and New York cases in which police officers mistook fake guns for real guns and includes a photograph of an air rifle that would not be considered a “firearm” under the statutory definition. However, these things were not offered as evidence at trial and were never considered by the jury. We hold that the question of whether eyewitness testimony is sufficient to establish that an object is a “firearm” is a question of fact properly determined by the jury.
¶ 25 Additionally, defendant contends that the reasoning in Lee, Fields, Toy, and Wright was flawed. Defendant believes that Lee, Fields, Toy, and Wright were incorrectly decided because they relied on, or cited cases that relied on, People v. Thomas, 189 Ill. App. 3d 365 (1989). The Thomas court held that the testimony of a credible eyewitness is sufficient to establish that a defendant carried a firearm during a robbery. Id. at 371. Defendant contends that Thomas is irrelevant because it involved the prior version of the armed robbery statute which required the
¶ 26 However, as the court in Fields noted, “[w]hile [the] statutory definition excludes some specific types of firearms, the term ‘firearm’ is defined broadly, including ‘any device, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas.’ ” Fields, 2014 IL App (1st) 110311, ¶ 36 (quoting
¶ 27 Insofar as defendant attempts to distinguish Fields, Toy, Lee, and Wright on their facts, including differences in the size of the guns involved and the witnesses’ opportunities to view the guns, we reassert our finding that the evidence presented at trial, when viewed in the light most favorable to the State, was sufficient for a rational jury to find beyond a reasonable doubt that defendant was armed with a firearm during the commission of the robbery.
¶ 28 In coming to this conclusion, we reject defendant‘s reliance on People v. Ross, 229 Ill. 2d 255 (2008). Defendant cites Ross for its reasoning that a finding that a gun is a dangerous weapon must focus on the “objective nature of the gun” rather than “the subjective feelings of the victim.” Id. at 277. Ross interpreted a prior version of the armed robbery statute, which defined “armed robbery” as the commission of a robbery while armed with a “dangerous weapon.” Id. at 272 (citing
¶ 29 We also reject defendant‘s reliance on People v. Crowder, 323 Ill. App. 3d 710, 712 (2001), for the proposition that Illinois case law rejects the notion that “everything that looks like a gun is a gun.” In Crowder, the only issue on appeal was whether the trial court properly dismissed the indictment, which charged the defendant with unlawful possession of weapons by a felon and willful use of weapons, where the State destroyed the gun that formed the basis of the charges after the defendant requested to view it. Id. at 711-12. The Crowder court reasoned that without being able to inspect the weapon, the defendant would not be able to refute the State‘s contention that the weapon was a firearm. Id. at 712. Unlike Crowder, this case does not involve the destruction of a firearm sought by a defendant in discovery but rather involves the question of whether the evidence presented at trial was sufficient for a jury to find beyond a reasonable doubt that defendant possessed a firearm during the robbery. For the reasons discussed above, we have found that the evidence was sufficient.
II. Jury Instruction Defining “Firearm”
¶ 30 ¶ 31 Next, defendant argues that the trial court erred in failing to give a jury instruction defining the term “firearm.” Defendant concedes that he forfeited the issue by failing to request the instruction at trial or raise the issue in a posttrial motion. See
A. Jury Instruction
¶ 32 ¶ 33 First, we address whether the trial court‘s failure to sua sponte offer a jury instruction defining “firearm” constituted plain error. Forfeited errors are reviewable under the plain error doctrine where: (1) “a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error“; or (2) “a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant‘s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.” People v. Belknap, 2014 IL 117094, ¶ 48. “The first step of plain-error review is determining whether any error occurred.” People v. Thompson, 238 Ill. 2d 598, 613 (2010).
¶ 34 Here, no error occurred when the trial court failed to sua sponte give a jury instruction defining “firearm.” “When words used in a jury instruction have a commonly understood meaning, the court need not define them with the use of additional instructions; this is particularly true where the pattern jury instructions do not provide that an additional definition is necessary.” People v. Manning, 334 Ill. App. 3d 882, 890 (2002). Although the statutory definition of the term “firearm” contains some limited exceptions, the term is defined broadly. Further, “firearm” has a commonly understood meaning that is consistent with the broad statutory definition.
¶ 35 Additionally, we note that Illinois Pattern Jury Instructions, Criminal, Nos. 14.05 and 14.06 (4th ed. 2000) (hereinafter, IPI Criminal 4th Nos. 14.05 and 14.06) (definition of armed robbery and issues in armed robbery) previously tracked the language of the prior armed robbery
¶ 36 Even if we were to accept defendant‘s position that it was error for the trial court to fail to sua sponte give a jury instruction defining “firearm,” we find that neither prong of plain error review applies. The evidence in this case was not closely balanced with regard to the issue of whether defendant carried a firearm during the robbery. As discussed above, the unequivocal testimony of Bilfaqi and Chernyshev was sufficient to establish that defendant was armed with a firearm during the robbery. Additionally, no evidence was presented at trial suggesting that the rifle observed by Bilfaqi and Chernyshev was anything other than a real firearm.
¶ 37 We also find that review is not warranted under the second prong of plain error analysis. Our supreme court has equated the second prong of plain error review with structural error. Thompson, 238 Ill. 2d at 613-14. A structural error is ” ‘a systemic error which serves to “erode the integrity of the judicial process and undermine the fairness of the defendant‘s trial.” ’ ” Id. at
B. Ineffective Assistance of Counsel
¶ 38 ¶ 39 Alternatively, defendant argues that defense counsel‘s failure to request a jury instruction defining firearm constituted ineffective assistance of counsel. Upon review, we find that defendant was not prejudiced by counsel‘s failure to request such an instruction.
¶ 40 We use the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), in assessing claims of ineffective assistance of counsel. People v. Coleman, 183 Ill. 2d 366, 397 (1998). Thus, to establish ineffective assistance of counsel, a defendant must demonstrate both that: (1) “counsel‘s performance was deficient“; and (2) “but for defense counsel‘s deficient performance, the result of the proceeding would have been different.” Id. “Courts *** may resolve ineffectiveness claims under the two-part Strickland test by reaching only the prejudice component, for lack of prejudice renders irrelevant the issue of counsel‘s performance.” Id. at 397-98.
III. Fines and Fees
¶ 42 ¶ 43 Finally, defendant argues that certain fines were improperly imposed against him by the circuit clerk after sentencing and were not incorporated into a signed judgment order. Defendant also argues that he is entitled to a $5-per-day presentence incarceration credit for 947 days spent in custody. The State concedes that the fines and fees assessed against defendant must be vacated and the matter remanded for entry of a proper order enumerating fines, fees, and costs. Upon consideration of the parties’ briefs and after a review of the record, we accept the State‘s concession of error.
¶ 44 Therefore, we vacate all of the fines and fees assessed against defendant, and we remand the cause with the following directions: (1) the trial court shall expressly impose any and all fines; (2) the circuit clerk shall specifically name each individual fee imposed as a court cost by the clerk; (3) the amount of each fine, fee, assessment or court cost defendant has been ordered to pay as part of the sentence shall be set forth in a written order bearing the court‘s signature; (4) the written order shall provide the statutory authority for each individual financial charge; and
CONCLUSION
¶ 45 ¶ 46 The judgment of the circuit court of Peoria County is affirmed in part, vacated in part, and remanded with directions to enter a proper order for fines and fees.
¶ 47 Affirmed in part and vacated in part.
¶ 48 Remanded with directions.